Filibusters of Executive Nominations: Good Riddance!

As is often the case, media coverage and political debate over the Senate rule change barring filibusters of executive branch nominations has focused on the politics of the issue, that is – who is doing what to whom and why – rather than the substance of the change and the impact it will have on the functioning of our government.  When examined from a substantive perspective – the rule change is an unqualified positive step that people who care about good governance should applaud, regardless of their political perspective.  

Our analysis should begin with the fundamental, uncontroversial fact that the president is elected by all the people (albeit indirectly) and through this election is legitimately authorized under the Constitution to exercise the power of the executive.  The president’s nominees to cabinet or sub-cabinet offices are put in place for the purpose of aiding the president in the smooth operation of the executive branch and implementing the laws prescribed by Congress and the policies developed by the president. These officials’ power flows directly from the president – they do not have any individual policy making authority.    

The entire constitutional advice and consent process – which gives the Senate a veto power over presidential appointments of “officers” of the United States – places an enormous burden on the functioning of the executive branch of government.  To avoid confirmation battles, the executive is forced to apply a lengthy, intrusive vetting process for its nominees that goes far beyond what would be required for important private job in the private sector.  This vetting (which I have had the unfortunate experience of conducting myself) includes delving into matters that have little to do with a person’s present job qualifications, and everything to do with whether elements of a candidate’s private life, even matters that took place decades ago, could cause embarrassment or controversy.  Candidates that emerge from this process and are then nominated must then endure the Senate confirmation process, which can take months, and in exceptional cases, over a year.

There is ample evidence that the cumbersome process discourages many highly skilled individuals from even considering government service.  Moreover, during the pre-nomination and confirmation process, executive branch positions are left open, with entire agencies and sub-agencies being run by lower level officials operating in an “acting” capacity.  These “acting” officials lack true legitimacy and authority, and therefore usually defer important decision making until a permanent officer is nominated and confirmed.   The result of this lengthy process is that either the efficiency of the government is reduced, or that important decisions which cannot wait are made by individuals who have not been nominated by the president and do not have the imprimatur of Senate confirmation.

Filibusters of executive branch nominations are rarely, if ever, about whether an individual is qualified to hold office.  Indeed, if the Senate process unveils some aspect of a person’s background that was not caught in the executive vetting – that usually leads to withdrawal of a nomination.  The fight over the filibuster rules is rather about power – the power of the minority in the Senate to use the nomination process as leverage to obtain a policy result it cannot accomplish through the legislative process or influence policy in some other way. 

Our evaluation of the nomination process and its rules, therefore, ought to begin with an analysis of whether one believes in greater executive power to form policy or wants to give the Senate, in general, or a minority of Senators, with respect to filibusters, more tools to assert influence.  That discussion should start with a recognition that under our Constitution the executive branch is quite weak, except in matters of military and foreign policy.  Domestically, the President cannot do much of anything on his own other than grant pardons.  Congress, on the other hand, has the power of the purse, a host of specifically enumerated powers to make laws impacting the nation, and the quite expansive power to make all laws “necessary and proper” for the government to execute the full range of its constitutional powers.  By virtue of the legislative filibuster (which remains fully intact), the Senate minority has an arsenal of ways to influence law and policy.  Not a nickel of federal funds can be spent and not a jot of legislation can be passed unless a Senate minority party agrees.  This is an extraordinary power in a system based on the concept of majority rule. 

In light of the power that our system already gives to both Congress and congressional minorities, giving a Senate minority the power to block presidential nominations is wholly unnecessary.  Consider the results of a nomination filibuster:  either a nomination is withdrawn, in which case the president simply nominates another person who shares his views and will implement his policies, or the office remains vacant.  Neither result advances the cause of good governance.  Rather, the filibuster simply provides a visible stage for policy disagreements and partisan differences to be exhibited.  It is perfectly fine for these differences to play themselves out in debates over legislation or in elections – that is what democracy is for.  When it happens in a nomination process, however, damage is inflicted on our country’s ability to execute the functions of government.   

For those of us who want our government to be able to function properly, even during times of partisan disagreements, last week’s rule change was long overdue.